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Britt beats Brooks in Senate primary that divided MAGA-world



While Brooks initially received Trump’s endorsement in the Senate race, the former president rescinded his support this spring as Brooks’ campaign floundered, eventually endorsing Britt, the frontrunner, after the state’s May 24 primary went to a runoff.

The race has left some of Trump’s staunchest loyalists bewildered by his decision to support Britt, whom he described less than a year ago as the “assistant” of “the RINO Senator from Alabama,” saying Britt was “not what our Country needs.”

Amy Kremer, chair of Women for America First, a key organizer for Trump’s Jan. 6, 2021 rally, who traveled to Alabama to assist the Brooks campaign in recent days, has remained committed to Brooks despite Trump’s decision to rescind his endorsement.

“Donald Trump is disconnected from the base,” said Kremer, who was an early supporter of Trump and prior to that, a leading activist in the tea party movement. “I don’t know what has happened there. I think he’s getting bad advice from the people around him, and I think it’s unfortunate, but it’s time for those of us in the movement to get back to basics, back to our first principles.”

“We were here long before President Trump came along, and we’re going to be here long afterward,” Kremer said.

Even after Trump put his weight behind Britt in the runoff — and as public and internal polling showed Brooks’ prospects as weak — top conservative commentators like Sean Hannity, Ann Coulter, Mark Levin and Charlie Kirk declared their support for Brooks up to the final day of the campaign. Kirk, Sen. Rand Paul (R-Ky.), Reps. Scott Perry (R-Pa.), Mark Green (R-Tenn.) and Chip Roy (R-Texas) and Arizona Republican Party chair Kelli Ward spent Monday night on a tele-town hall in support of Brooks, as Sen. Ted Cruz (R-Texas) and Rep. Marjorie Taylor Greene (R-Ga.) also continued to lend their support.

Such a split among conservative leaders who typically kowtow to Trump – but have been willing to speak out against his endorsed candidate – has been a recurring phenomenon in this year’s Republican primaries. Longtime Trump allies found themselves opposing the former president in primaries in Ohio and Pennsylvania last month, bitter races that resulted in some Trump loyalists arguing that he was wrong in his endorsements of J.D. Vance in Ohio and Dr. Mehmet Oz in Pennsylvania.

Throughout the runoff campaign, Britt continued to rack up her own endorsements from high profile Republicans, including Sens. Tim Scott (R-S.C.), Tom Cotton (R-Ark.) and Joni Ernst (R-Iowa). In the final weeks, Sarah Huckabee Sanders, the GOP nominee for governor in Arkansas, and commentator Steve Cortes have also put out statements and videos in support of Britt’s campaign. That follows several other incumbent senators endorsing her earlier this year.

Paul has remained a steadfast supporter of Brooks, visiting the state on Friday to campaign for the congressman. He told callers to a Monday night tele-town hall that Trump has “made some big whopper mistakes.”

“Many of us were conservative, slash libertarian, slash constitutionalists well before there was a Donald Trump,” Paul said to potential voters on the Monday night call. “We were glad Donald Trump was with us on so many things, but it doesn’t make him the end-all of everything.

“I would say, without question, Mo Brooks is probably the most loyal person to Donald Trump than probably all of the congressmen I can think of, and there’s certainly a sense of bad irony that the president didn’t repay that loyalty. And I’ll never understand it, and never justify it.”

Britt is the preferred candidate of Sen. Mitch McConnell (R-Ky.), a Trump nemesis, while Brooks is an adversary of the Senate minority leader. Adding to Britt’s significant spending advantage in the race was at least $2 million from the McConnell-aligned Senate Leadership Fund, which gave to a pro-Britt super PAC. SLF said their involvement was part of an anti-Brooks effort.

Brooks, who was first elected to Congress in 2010 after spending a combined 25 years as a state legislator and member of the Madison County Commission, led efforts in Congress to oppose the certification of President Joe Biden’s 2020 victory — including speaking at Trump’s Jan. 6, 2021, rally. But Trump blamed Brooks’ decline in support throughout the winter on comments the congressman made last year encouraging Republicans to move on from 2020 and focus their efforts on winning elections in 2022 and 2024.

Britt, however, did not champion Trump’s stolen-election narrative, instead carefully answering questions about the issue by suggesting there should be a “nationwide forensic audit,” but stopping short of declaring that Biden’s victory was fraudulent.

The former president of the Business Council of Alabama, Britt veered right as the campaign progressed, including unveiling her own restrictive immigration plan and criticizing Congress’ spending on Ukraine aid, something Shelby – and Brooks, for that matter – voted last month to support.

She has still managed to earn and keep the endorsements of more than a dozen business and industry groups in Alabama. Meanwhile, Britt and several super PACs supporting her spent more than $5 million on television advertisements during the four-week runoff, compared to less than half a million by Brooks and the Club for Growth, which endorsed him in the race.

“She has got the support of McConnell, she’s got the support of Shelby, she’s got the support of the Chamber, and yet she is supposed to be Tom Cotton on immigration and Rand Paul on foreign policy,” said Ryan Girdusky, a Republican operative supporting Brooks, who was also involved in a super PAC backing Vance in Ohio. “I will hold my breath.”

Alabama is a state unlikely to prove consequential to the Senate map this year. Unlike in 2017, when Republican Roy Moore cost the party a seat as he faced sexual misconduct allegations, the GOP nominee is all but guaranteed a general election win.

A handful of other safe seats are in play for Republican primary voters Tuesday night in Alabama and other states. The race to replace Brooks in the House is pitting Madison County Commission Chairman Dale Strong against former Assistant Secretary of the Army Casey Wardynski in a GOP primary runoff.
Republicans in Georgia are also choosing nominees for a pair of safe red seats. Trump endorsed candidates in both seats — Jake Evans in the 6th District and Vernon Jones in the 10th — but both primaries have been hard-fought nonetheless.

And in Virginia, Republicans are choosing nominees to take on a pair of Democratic members of Congress in major battleground districts. The race to face Rep. Elaine Luria (D-Va.) in the 2nd District is one of the GOP’s top House targets in the country, and Rep. Abigail Spanberger (D-Va.) may also have a tough race on her hands in the redrawn 7th District.



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Biden poised to announce a likely doomed gas tax holiday



Biden is expected to deliver remarks on gas prices at 2 p.m. on Wednesday.

“President Biden has made clear he is committed to doing everything he can to reduce gas prices for the American people, and he will have more to say on this tomorrow,” a White House official said.

Biden’s gas tax holiday, however, has already been met with skepticism from senior Democrats in the House. Speaker Nancy Pelosi and others have questioned whether the policy will lead to savings at the pump, rather than excess profits for gas companies. Democrats chose not to include it in their own bill aimed at lowering gas prices last month.

“I’ve not been a proponent of the gas tax,” House Majority Leader Steny Hoyer said in a brief interview on Tuesday night. “I just don’t know that it gives much relief.”

On Tuesday, Biden offered a preemptive defense of the proposal, arguing that while it would have some financial effect on the highway trust fund, “it’s not going to have an impact on major road construction and major repairs.”

Biden’s pleas for Congress and states to take action on a gas holiday will arrive as millions of Americans prepare for summertime driving, including over next month’s July Fourth weekend. But in reality, any federal gas holiday does not have the broad Democratic support, let alone the multiple Republicans needed to pass the policy in the Senate.

The more likely scenario, multiple Democrats acknowledged on Tuesday evening, was for Biden to put pressure on states to enact their own gas tax holidays, as states like Maryland have already done, though with limited political gains. Privately, some Democratic lawmakers dismissed the move as “too little, too late,” with gas prices expected to rise even more sharply through the summer and no long-term strategy to combat it.

Still, Democrats in some of the nation’s toughest races — who have been eager to see Biden take action on rising prices — embraced the idea.

“I’m for it,” said Rep Dan Kildee, who is running in a critical battleground in Michigan. “I was for it a long time ago.”



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Alabama voters set to resolve MAGA-world feud in primary runoff



Polls were set to close in Alabama at 7 p.m. Central Time.

The race has left some of Trump’s most loyal acolytes bewildered by his decision to support Britt, whom he described less than a year ago as the “assistant” of “the RINO Senator from Alabama,” saying Britt was “not what our Country needs.”

Amy Kremer, chair of Women for America First, a key organizer for Trump’s Jan. 6, 2021 rally, who traveled to Alabama to assist the Brooks campaign in recent days, has remained committed to Brooks despite Trump’s decision to rescind his endorsement.

“Donald Trump is disconnected from the base,” said Kremer, who was an early supporter of Trump and prior to that, a leading activist in the tea party movement. “I don’t know what has happened there. I think he’s getting bad advice from the people around him, and I think it’s unfortunate, but it’s time for those of us in the movement to get back to basics, back to our first principles.

“We were here long before President Trump came along, and we’re going to be here long afterward,” Kremer said.

Even after Trump put his weight behind Britt in the runoff — and as public and internal polling has shown Brooks’ prospects as weak — top conservative commentators like Sean Hannity, Ann Coulter, Mark Levin and Charlie Kirk declared their support for Brooks up to the final day of the campaign. Kirk, Sen. Rand Paul (R-Ky.), Reps. Scott Perry (R-Pa.), Mark Green (R-Tenn.) and Chip Roy (R-Texas) and Arizona Republican Party chair Kelli Ward spent Monday night on a tele-town hall in support of Brooks, as Sen. Ted Cruz (R-Texas) and Rep. Marjorie Taylor Greene (R-Ga.) also continued to lend their support.

Such a split among conservative leaders who typically side with Trump — but have been willing to speak out against his endorsed candidate — has been a recurring phenomenon in this year’s Republican primaries. Longtime Trump allies found themselves opposing the former president in primaries in Ohio and Pennsylvania last month, bitter races that resulted in some Trump loyalists arguing that he was wrong in his endorsements of J.D. Vance in Ohio and Dr. Mehmet Oz in Pennsylvania.

Throughout the runoff campaign, Britt has continued to rack up her own endorsements from high-profile Republicans, including Sens. Tim Scott (R-S.C.), Tom Cotton (R-Ark.) and Joni Ernst (R-Iowa). In the final weeks, Sarah Huckabee Sanders, the GOP nominee for governor in Arkansas, and commentator Steve Cortes have also put out statements and videos in support of Britt’s campaign. That follows several other incumbent senators endorsing her earlier this year.

Paul has remained a steadfast supporter of Brooks, visiting the state on Friday to campaign for the congressman. He told callers to at Monday night tele-town hall that Trump has “made some big whopper mistakes.”

“Many of us were conservative, slash libertarian, slash constitutionalists well before there was a Donald Trump,” Paul said to potential voters on the Monday night call. “We were glad Donald Trump was with us on so many things, but it doesn’t make him the end-all of everything.

“I would say, without question, Mo Brooks is probably the most loyal person to Donald Trump than probably all of the congressmen I can think of, and there’s certainly a sense of bad irony that the president didn’t repay that loyalty. And I’ll never understand it, and never justify it.

Britt is the preferred candidate of Sen. Mitch McConnell (R-Ky.), a Trump nemesis, while Brooks is an adversary of the Senate minority leader. Adding to Britt’s significant spending advantage in the race was at least $2 million from the McConnell-aligned Senate Leadership Fund, which gave to a pro-Britt super PAC. SLF said its involvement was part of an anti-Brooks effort.

Brooks, who was first elected to Congress in 2010 after spending a combined 25 years as a state legislator and member of the Madison County Commission, led efforts in Congress to oppose the certification of President Joe Biden’s 2020 victory — including speaking at Trump’s Jan. 6, 2021, rally. But Trump blamed Brooks’ decline in support throughout the winter on comments the congressman made last year encouraging Republicans to move on from 2020 and focus their efforts on winning elections in 2022 and 2024.

Britt, however, has not sought to champion Trump’s stolen-election narrative, instead carefully answering questions about the issue by suggesting there should be a “nationwide forensic audit,” but stopping short of declaring that Biden’s victory was fraudulent.

The former president of the Business Council of Alabama, Britt has veered right as the campaign progressed, including unveiling her own restrictive immigration plan and criticizing Congress’ spending on Ukraine aid, something Shelby — and Brooks, for that matter — voted last month to support.

She has still managed to earn and keep the endorsements of more than a dozen business and industry groups in Alabama.

“She has got the support of McConnell, she’s got the support of Shelby, she’s got the support of the Chamber, and yet she is supposed to be Tom Cotton on immigration and Rand Paul on foreign policy,” said Ryan Girdusky, a Republican operative supporting Brooks, who was also involved in a super PAC backing Vance in Ohio. “I will hold my breath.”

Alabama is a state unlikely to prove consequential to the Senate map this year. Unlike in 2017, when Republican Roy Moore cost the party a seat as he faced sexual misconduct allegations, the GOP nominee is all but guaranteed a general election win.

A handful of other safe seats are in play for Republican primary voters Tuesday night in Alabama and other states. The race to replace Brooks in the House is pitting Madison County Commission Chairman Dale Strong against former Assistant Secretary of the Army Casey Wardynski in a GOP primary runoff.

Republicans in Georgia are also choosing nominees for a pair of safe red seats. Trump endorsed candidates in both seats — Jake Evans in the 6th District and Vernon Jones in the 10th — but both primaries have been hard-fought nonetheless.

And in Virginia, Republicans are choosing nominees to take on a pair of Democratic members of Congress in major battleground districts. The race to face Rep. Elaine Luria (D-Va.) in the 2nd District is one of the GOP’s top House targets in the country, and Rep. Abigail Spanberger (D-Va.) may also have a tough race on her hands in the redrawn 7th District.



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Rep. Henry Cuellar clinches Dem primary win over progressive challenger


Cisneros, a former intern in Cuellar’s office making her second run against him, was backed by prominent progressives, including Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.). The incumbent, a moderate Blue Dog Democrat, got backing from House Democratic leadership, including Speaker Nancy Pelosi, and a pair of big-spending super PACs.

Cuellar’s win offers a jolt to the establishment-aligned forces that have come together this primary season to back more moderate Democratic candidates and thwart progressives. The South Texas victory would have been a massive win for their adversaries on the left, who have won some other key primaries this spring, including ousting Rep. Kurt Schrader (D-Ore.), another Blue Dog Democrat.

But privately, even some Democrats not ideologically aligned with Cuellar are relieved that he prevailed, because they believe Cisneros’s support for progressive policy positions, such as a Green New Deal and Medicare for All, wouldn’t have played well in the general election in a large battleground district that relies heavily on oil and gas.

Cuellar must win again in November to keep the seat — and Republicans are targeting the district, which President Joe Biden carried by 7 points. The GOP nominee is Cassy Garcia, a former aide to Sen. Ted Cruz (R-Texas).

Garcia is one of three Latina Republicans running for South Texas districts this fall, including Rep.-elect Mayra Flores, who gave the group a boost this week by winning a special election for a vacant Democratic seat that President Joe Biden carried by 4 points in 2020. The November election will take place under new district lines, and national Democrats insisted it was a waste of effort to compete for the soon-to-disappear seat.

Cuellar still won by 19 points in 2020, even as Biden’s margins in his district shrank from the comfortable double digits advantages won by previous Democratic presidential nominees. But the rapid political shifts in South Texas have Republicans hoping they can challenge him this fall.

Cisneros tried to best Cuellar by running up the margins in the more liberal areas of the district in and around San Antonio. And the Supreme Court’s preparations to slash abortion rights added renewed urgency to the race, especially in those areas.

EMILY’s List, a pro-abortion rights group that backs female candidates, made an 11th hour TV buy of $550,000 to help boost Cisneros. By the final weeks of the race, the candidate and the group were together outspending Cuellar and his two allied super PACs on the air.

Cuellar, who said in the aftermath of the publication of the Roe draft opinion that he did not support a total ban on abortion without exceptions, claimed his views were in line with the majority of the Catholic-heavy district. He also said that he was not the FBI raid reportedly linked to a federal probe of Azerbaijan-connected campaign donation.

But Cisneros gained undeniable momentum in the final weeks of the race. After coming about 1,000 votes away from besting Cuellar in the March primary, Cisneros pulled in $1.2 million from April 1 to May 4, according to reports recently filed with the Federal Election Commission. Cuellar raised just $352,000.

But the incumbent had more help overall from two super PACs, one linked to pro-Israel donors and another with ties to LinkedIn co-founder Reid Hoffman.



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Unseen Trump tapes subpoenaed by House panel investigating Jan. 6


A source familiar with the project told POLITICO on Monday night that Holder began filming on the campaign trail in September 2020 for a project on Trump’s reelection campaign. Over the course of several months, Holder had substantial access to Trump, Trump’s adult children and Mike Pence, both in the White House and on the campaign trail.

According to the subpoena, which was obtained exclusively by POLITICO, the committee has subpoenaed “any raw footage you or your colleagues took in Washington, D.C., on January 6, 2021”; raw footage of interviews he conducted with Trump, Pence, Donald Trump Jr., Ivanka Trump, Eric Trump and son-in-law and senior adviser Jared Kushner; and raw footage “pertaining to discussions of election fraud or election integrity surrounding the November 2020 presidential election.”

Holder is expected to fully cooperate with the committee in an interview scheduled for Thursday.

The move comes as the committee is set to meet on Tuesday afternoon for a hearing that centers on the pressure campaign Trump and his allies mounted to get state officials to overturn the 2020 election, including attempts to advance slates of “alternate electors” to flip the results.



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Opinion | Mike Pence Is No Hero



Pence had a chance — many chances during the Trump administration — to earn his hero’s ribbon. In November 2020, as Trump irrationally disputed the election outcome, Pence could have spoken the truth against the mendacious president. Such a move would surely have diminished Trump’s plan to persuade congressional Republicans to contest the election results. Pence had another chance for a heroic turn in the days after Jan. 6 when Secretary of Education Betsy Devos sounded out others in the administration about invoking the 25th Amendment. Such a challenge, backed by a majority of the cabinet and the vice president, would have relieved Trump of his presidential powers and put Pence in charge. But he declined.

Instead of doing any of these things, Pence searched for a way to satisfy Trump’s order to invalidate the election, according to Bob Woodward and Robert Costa’s Peril. To that end, Pence asked fellow Hoosier and former Vice President Dan Quayle if there was any way he could pause certification. There’s not much heroism at work when a blockhead, caught in a squeeze by his boss, asks a dunce for advice. Either Pence was looking for a way to satisfy Trump’s order to invalidate the election or he wanted more assurances he couldn’t do it. Regardless, as luck would have it, Quayle performed above his weight class and delivered the correct verdict. “Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” Quayle reportedly said.

Before the melee of Jan. 6, Pence’s office contacted retired federal judge Michael Luttig for his legal advice, which dittoed Quayle’s. Pence sought these outside opinions when not even Eastman, the architect of the argument to overturn the election, believed his theory was legal. Remember, he confessed to that in front of Pence’s counsel! Likewise, Pence deserves little credit for inserting himself into the chain of command to demand military defense of the Capitol. Since when is the guy who calls 911 a hero?

Pence is less a hero than he is a tragic figure whose flaws undid him. His vain desire for political power led him to support Trump and then toady to him for four years no matter what he did. Even now, when it’s abundantly apparent that Trump attempted to undo the peaceful transfer of power and effectively endorsed his veep’s murder, Pence holds his silence, declining the Jan. 6 committee’s invitation to testify and avoiding the subject on the political hustings except to say he thinks he did the right thing. Just last week, my POLITICO colleague Adam Wren noted on Twitter, reporters tried to ask Pence Jan. 6 questions during an Ohio energy roundtable. His aides escorted him out of the room. A genuine hero would speak the truth, no matter the consequences. Imagine the stories Pence could tell under oath about the week of Jan. 6 if even a microgram of the heroic lurked in his soul.

What to make of Pence’s timidity? The best explanation might be his presidential ambitions, sketched out by the Wall Street Journal last week. The Republican Party is still in thrall to Trump, and if Pence wants any chance of winning the GOP nomination in 2024, he can’t fully break with the leader of the cult. Perhaps he thinks this middle path will provide a viable path to the presidency, but it’s just as likely he’ll infuriate voters on both sides of the aisle.

Pence did the right thing on Jan. 6, but it didn’t make him a hero. Please cancel the parade.

******

Pence has become the new Quayle, a pathetic veep whose president lost reelection, leaving him an opening to run (unsuccessfully) for president. Send your favorite Pence moment to [email protected]. My email alerts are taking no new subscribers. My Twitter feed wants to be my RSS feed’s veep. My RSS feed says, Nothing doing, pal.





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Court strikes down Maine law barring state funds for religious education



“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Under the Maine “tuitioning” program the court struck down on Tuesday, local governments lacking the population to run schools at a certain grade level typically pay for students to be educated at public or private schools of their choice. But, to avoid government funds being used for religious purposes, since 1981 the program has refused to pay for schools providing religious education.

In a 2020 decision on an educational aid program out of Montana, the Supreme Court ruled 5-4 that states could not exclude families or schools from student aid programs simply because the schools were backed by religious institutions.

However, that decision left open the question of whether states could block the use of their funds for explicitly religious or “sectarian” classes.

But in the case decided Tuesday, Roberts explicitly rejected Maine’ arguments that it was only targeting religious teaching and not whether a school was run by a religious group.

“Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism,” the chief justice wrote.

In what is one of his final dissenting opinions before his planned retirement, Justice Stephen Breyer said the court seems to have lost all interest in enforcing the Constitution’s prohibition on establishment of religion.

“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second,” Breyer wrote.

Breyer also said the court was opening a Pandora’s box with its decision, suggesting that it was simply a way station to requiring all communities to use taxpayer funds to pay for religious schooling.

“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Breyer wrote.

“What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” Breyer asked. “Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

Justice Sonia Sotomayor also dissented, lamenting what she sees as a series of decisions bringing the government closer to direct sponsorship of religious activity.

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor warned. “It is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.”

Juan Perez Jr. contributed to this report.



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Opinion | Why Is the Justice Department Fighting With the Jan. 6 Committee?



The letter raised eyebrows among observers not only because of its sharp and insistent tone, but because it seemed to reflect broader, longer-running tensions between the committee and the department. Last fall, committee member Rep. Adam Schiff (D-Calif.) said that he “vehemently” disagreed with what he sees as the Justice Department’s overly cautious approach to its criminal investigation and to Trump in particular, and he blamed it on “a real desire on the part of the attorney general, for the most part, not to look backward.” As the department reviewed the committee’s referrals for criminal contempt charges against Trump chief of staff Mark Meadows, members publicly called out the department for what they saw as an unwarranted delay. And when the department ultimately declined to pursue charges against Meadows a couple weeks ago, committee chair Rep. Bennie Thompson (D-Miss.) and Vice Chair Rep. Liz Cheney (R-Wyo.) called the decision “puzzling.”

The letter from the Justice Department seeking the committee’s transcripts reflects an unusual level of tension between the two investigative bodies — the New York Times reported that “Democrats on the committee were stunned by the confrontational tone” — but the committee has legitimate reasons to be wary of handing troves of transcripts over in wholesale fashion right now. They are still conducting their investigation, and as Justice Department prosecutors know as well as anyone, anytime that investigators lose control over raw investigative material, there is no way to predict how it will be used and potentially misused.

Once the department comes into possession of this material, they will likely be obligated to produce at least portions of it to some of the 800-plus defendants who have been charged to date by prosecutors based on their involvement in the siege of the Capitol. Even with so-called “protective orders” in place that nominally prevent defendants from widely disseminating discovery from the government, there is no realistic way to ensure that defendants or their lawyers will not share this material with people who are not supposed to have access to it. That, in turn, might allow people to coordinate their stories, and it could disincentivize other people from coming forward to speak to the committee.

As for the Justice Department’s position, it is understandable that they would want this material, but the suggestion that they are entitled to it is dubious at best. In order to satisfy their discovery obligations to criminal defendants, prosecutors are required to produce (among other things) any exculpatory evidence in their possession, but this is not evidence in the department’s possession.

The department is used to getting investigative material from other executive branch agencies when it likes, which may have something to do with its imperious approach to the committee. If, for instance, prosecutors are conducting an investigation in parallel to an investigation by civil regulators concerning the same underlying conduct — such as a separate inquiry by the Securities and Exchange Commission or the Commodity Futures Trading Commission — Justice Department prosecutors can send a so-called “access request” to obtain information from the agency’s investigative file. But of course, Congress is an independent and coequal branch with its own institutional prerogatives, not simply another enforcement agency. And tellingly, the department’s letter cites no precedent or legal authority to suggest that the committee is obliged to hand over its work product.

Instead, the letter asserts that it is “critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations.” The implication is that the department wants to ensure that cooperating witnesses who may be key to ongoing prosecutions have not provided materially inconsistent accounts to congressional investigators in a way that would undermine the credibility of their claims to prosecutors, perhaps expose them to impeachment on a witness stand or, in the worst-case scenario, provide a basis to overturn a conviction if the conflict does not become known until after a trial.

This is a reasonable concern, but it is not the committee’s fault. In fact, this is one of the reasons that it was important from the outset for the committee and the department to coordinate their investigative work to minimize overlap and to develop appropriate information-sharing protocols, but the very public dust-up last week indicates that this did not happen in the way that it should have. The department has also suggested that the committee’s supposed recalcitrance may delay pending trials, but trials get delayed all the time, for reasons both good and bad. By itself, the adjournment of a trial is not the end of the world.

The committee has already sought to defuse the apparent tensions, with a spokesperson telling reporters last Friday that the committee’s members “believe accountability is important and won’t be an obstacle” to the department’s work. According to the Times, the committee “could start sharing some transcripts of witness interviews with federal prosecutors as early as next month.” In an interview on Monday, Schiff criticized the department’s indiscriminate request for the complete set of congressional transcripts as “unprecedented,” but suggested that the committee could accommodate prosecutors if they “particularize what they want.”

Perhaps above all, however, the Justice Department’s oddly combative approach to the committee may have something to do with the fact that there are now, more than ever, serious questions among the public about what the Justice Department has been doing for the last year-and-a-half. As committee member Rep. Zoe Lofgren (D-Calif.) put it in discussing the department’s request, “It just makes me wonder … what have they been doing over there?”

The committee’s hearings have produced important pieces of new information from witnesses at the highest levels of the Trump White House and reelection campaign, but the department could — and should — have been gathering this information itself all along. It has been clear since last January that the department had more than sufficient cause to conduct a wide-ranging investigation into the post-election conduct of Trump and others in his orbit. But the department and its most vocal supporters claimed that prosecutors needed to conduct their investigation by working their way up from the people who were present at the Capitol. This made little sense, and many people who have been watching the Jan. 6 hearings closely — featuring testimony from key insiders that has understandably spurred a slew of news stories about potential criminal conduct at the upper echelons of Trumpworld — now seem to agree.

There have been recent indications that the department has broadened its investigative ambit, but the expansion has come needlessly late, and there is no way to know whether and to what extent the delay will affect the outcome. That’s particularly true if Trump announces that he is running for reelection in 2024, at which point the department’s work will become considerably more complicated, as any investigation could look even more politicized. All the transcripts in the world can’t fix that problem.



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